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Tuesday, March 24, 2009

Brits Get Their Knickers in a Knot about Hung Juries

Ben Ando has an interesting article on the BBC website today about the "alarming" rise in hung juries in criminal cases in the UK. (The UK eliminated most jury trials for civil cases during the Second World War. All the men were at the front and they would have had to seat female jurors. Those in charge thought better of it and eliminated juries in such cases altogether.) Apparently, in 2008 a whopping 116 trials ended with a hung jury. This amounted to a 0.7% hung jury rate, or one hung jury for every 140 trials.

The UK uses a 10-2 rule for jury trials. So, in order to have a hung jury, at least 3 jurors have to hold out against the majority. This happens to be the same decision rule employed in Oregon for criminal trials (Louisiana uses 9-3). I decided to pull out some old data I had about hung jury rates and Oregon back in the 1990s. It turns out that the Oregon hung jury rate was very similar to what England is facing now, about 0.5%. During the same period, California (using a unanimity rule) had a hung jury rate of about 15%. In some counties, it was well above 20%. How do you think our friends across the pond would handle those numbers?

The BBC article specifically reports numbers for England and Wales. This is because Scotland has its own, rather unique, jury system. Scottish juries are comprised of 15 jurors, deciding by simple majority rule. So, 8 out of 15 is sufficient to render a verdict.

Lawyers, scholars and pundits who go apoplectic about the prospect of eliminating the unanimity requirement in the U.S. constantly carp about the loss of legitimacy of verdicts without unanimity. In reading the BBC piece, it is interesting to note that folks are frustrated with the increasing hung jury rate, but they don't seem too worried about the legitimacy of the verdicts that have been coming out of their 10-2 system for the past 40-odd years. In fact, some are arguing that the voting rule should be relaxed further. Who knows? Maybe the whole UK could end up with the Scottish system.

Meanwhile, we are stuck having to retry thousands and thousands of cases every year. Perhaps we should consider whether our system could finally use some tweaking.

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